Briefing: “Lawsuit Challenges US Aid to Israel & Nuclear Gag Order”
October 23, 2017
Grant F. Smith
1
IRmep Programs
• Non-profit founded in 2002 to study US
Middle East policy formulation
• Israel Lobby Archive repository of Israel and
its US lobby’s activities, mostly historical, fed
by FOIA releases
• Conferences & Public events
• Polls 2014 polling
• Center for Policy & Law
2
Shifting Context
• Trump administration
– Hostility to JCPOA/Iran over nuclear issues
– Declared intent to buck international law by moving US
embassy from Tel Aviv to Jerusalem
– No enforcement of MOU aid caps
– Ambassador & “peace” team more tilted toward Israel
than any previous
– Intense pressure on foreign news organizations (RT, AJ)
that openly reported about Israel’s nuclear program
• Israel lobby attempts to
– Criminalize boycotts of Israel
– US engaged against Iran & Syria Page 3
Page 4
Page 5
Page 6
Nuclear “ambiguity”
Page 7
Lawsuit goals
• Work through the third branch for redress
• Improve US Middle East policy by increasing transparency
and rule of law and fighting corruption
– Obtain information that is tightly held for the wrong reasons
(embarrassment, to cover up wrongdoing)
– Petition for enforcement of important laws
• “Catalyst” for others to take action in relevant forums
• Focus
– “Nuclear ambiguity”
• Unconditional, unlawful US aid to Israel
– Capture of key gov’t agencies and divisions
• To protect such programs
8
IRmep Lawsuits (Past/Present)
DOD REPORT ON
ISRAELI NUCLEAR
WEAPONS
DEVELOPMENT
INFRASTRUCTURE
14-01611
CIA NUMEC
DIVERSION
FILES
15-00224
US AID TO ISRAEL
AND
“NUCLEAR
AMBIGUITY”
16-01610
CIA
INTELLIGENCE
AID TO ISRAEL
1990-2015
TOPLINE BUDGET
NUMBERS
15-01431
Research/Drafting/
Expert Review
Filed
Briefing / Dispositive
Motions
11/3/2017
Decision Report Released
02/10/2015
Dismissed
3/31/2017
Appeal 4/25/2017
Remand/Dismissal
Decision Page 9
Israel is a nuclear weapons state
• Has never signed the
Nuclear Non-Proliferation
Treaty
• Abundant information in
the public domain about
the its nuclear weapons
program.
• Even more classified
information held by the
US government.
Israel’s Dimona Nuclear
Weapons Facility
10
What is U.S. posture toward nuclear Israel?
• Seymour Hersh (1991):
– The “Samson Option”
– Israel will take down the
entire world if threatened
with being “driven into
the sea.”
• How does the NSC /
DoD deal with that?
• Posture evolving?
Page 11
Is U.S. posture toward nuclear Israel?
• Same as North Korea?
• US does not “recognize”
North Korea as a nuclear
power.
• Simultaneously fears
“nuclear blackmail” by
North Korea
• Any similarity to secret
U.S. policy on Israel?
Page 12
9/12/2017
Isn’t foreign aid to a Non-NNPT signatory nuclear country unlawful?
• It is impossible to get a response to this
important question from U.S. executive
branch and federal agency officials when they
are in office.
• List of “ambush” videos in resource section at
the end (Barack Obama, Dick Cheney,
Condoleezza Rice, State Dept. Spokesperson
etc.)
• MSM avoids.
Page 13
What are Symington & Glenn?
• 1970s amendments to the Foreign
Assistance Act of 1961 (now in AECA)
• Prohibit U.S. aid to any non-NPT signatory
building up a nuclear weapons program
• Require U.S. President to either:
– Stop aid
– Issue waivers to Congress specifying how
delivering aid to a non-NPT nuclear power “would
have a serious adverse effect on vital United
States interests.”
14
S&G Legislative intent
15
• “...if you wish to take the
dangerous and costly steps
necessary to achieve a nuclear
weapons option, you cannot
expect the United States to help
underwrite that effort indirectly or
directly.”
• 22 USC §2799aa–1 Nuclear
reprocessing transfers, illegal
exports for nuclear explosive
devices, transfers of nuclear
explosive devices, and nuclear
detonationsSenator Stuart Symington
Question: Israel & its US lobby want congress to finance Israel's "Qualitative Military Edge" over rivals without considering Israel is the region's sole nuclear power.
Page 16
5.4%
42.6%
52.0%
0.0% 10.0% 20.0% 30.0% 40.0% 50.0% 60.0%
Other
Congress should not consider Israel's nukes
Congress shouldconsider Israel's nukes
Source: IRmep through Google Consumer Surveys
1948-2016 US Aid to Israel $254B Inflation Adjusted (Unclassified)
Page 17
0
2000
4000
6000
8000
10000
12000
14000
16000
18000
Sued to block US foreign aid to Israel
• Fagan Dickson- 1975
• Harvard lawyer, anti-Vietnam war
activist behind “bring Lyndon
home” campaign.
• “..grants of foreign assistance by
the United States to Israel are
prohibited by the Establishment
of Religion Clause of the First
Amendment to the Constitution.”
• Denied standing.
Page 18
Sued to block US foreign aid to Israel
• Author Isaac Asimov among
plaintiffs who challenged
taxpayer-funded foreign aid
to religious schools through
AID
• Establishment Clause
• Dismissed 1991
• “Non-justiciable political
question” and for standing
as taxpayers
Page 19
Other recent cases against US Foreign Aid
• Joe Pool Jr.
• Three-time Republican
candidate for the TX
Supreme Court.
• Foreign aid to
Afghanistan “amounts
to illegal support for
Muslim nations.”
• Legal scholars find no
obvious standing.
Page 20
“Ultimately, he’s (Trump)
proposing the defense &
establishment of Islam.”
Standing “lessons” and success
• “Establishment clause” challenges over harm as
“taxpayers” have not been successful.
• Most successful recent lawsuit challenging a
President and federal agencies on overreach/not
following civil procedure and rule of law
• International, political question over Deferred
Access for Childhood Arrivals (DACA)
• States sued Obama and prevailed over harm
alleged by “unlawful legislative rules” issued over
undocumented immigration.
• Real, and immanent injury/harm Page 21
DACA & IRmep lawsuit to block Israel aid & overturn WPN-136
Modeled on the successful DACA lawsuit, except
Page 22
DACA litigation
2014
IRmep litigation
2016
Cause Obama administration
legislative rules on
immigration
Obama administration
legislative rules on
nuclear ambiguity.
Harm Unfunded costs incurred
by states over DACA
mandates
Unreimbursed costs
incurred under WPN-136
mandates
Parties A group of U.S. states A nonprofit research
group
Outcome Derailed President
Obama’s deportation
amnesty program.
TBD
Lower Court : US AID TO ISRAEL AND “NUCLEAR AMBIGUITY” case #16-01610
• Argument: President and federal agencies denied
the Plaintiff access to government information
about Israel’s nuclear weapons program.
• Defendants blocked information release to
preserve “ambiguity,” official recognition about
Israel’s nuclear weapons program and deliver
foreign aid without observing Arms Export Control
Act provisions.
• In 2012 Obama administration “codified nuclear
ambiguity” in unlawful legislative rule WPN-136.
Page 23
What has been driving “ambiguity?” For how long?
• Nixon Administration“The policy and practice of nuclear
opacity was codified in 1969 in an
extraordinary secret accord between
Israeli Prime Minister Golda Meir and
U.S. President Richard
Nixon. as long as Israel did not
advertise its possession of nuclear
weapons by publicly declaring or testing them, the United States
would tolerate and shield Israel's nuclear program” – Avner Cohen
Recently declassified Nixon administration files reveal fears of a
"Zionist campaign to try to undermine" U.S. resistance to Israel
going nuclear were a major factor in the compromise.
Still hundreds of unreleased Nixon admin files on this topic. 24
Remaining Nixon NSC NSSMs and Related Files
Page 25
Nixon (NARA) Finding Guide – NSSM 40
Page 26
What is WPN-136?
• 2012 Gag order on the release
of information or official
discussion of Israeli nuclear
weapons program by US
government agency
employees or contractors.
• Penalties:
– Reprimand
– Job loss
– Imprisonment
27
Impact of WPN-136 on Sunshine Laws
• Supersedes/undermines
– Freedom of Information Act
– Mandatory Declassification Reviews
• Places “out of reach”
– Nixon administration/Kissinger files
setting policy on Israel’s nukes
– Other NSC and strategy files on
Israeli proliferation and the “Samson
Option”
– BIS files on ongoing Israeli nuclear
technology smuggling
– Etc.
28
WPN-136 derived from US State Dept. classification guideline that states:
• “Reporting on and analysis of the
internal affairs or foreign relations
of a country is a central function of
U.S. foreign service posts and is
vital to the formulation and
execution of U.S. foreign policy.”
• “This reporting should be
unclassified when the subject
matter is routine, already in the
public domain, or otherwise not
sensitive.”
29
WPN-136 “Gag law” Enforcement...by Congress
• Los Alamos National Laboratory
nuclear analyst James Doyle wrote
candidly about Israel’s nuclear
weapons in “Why Eliminate Nuclear
Weapons” in 2013.
• His report had passed a classification
review
• After a congressional staffer read the
article, it was referred to classification
officials for a 2nd review.
• Doyle’s pay was then cut, his home
computer searched, and he was fired.30
“Nuclear weapons did
not deter Egypt and
Syria from attacking
Israel in 1973…”
Our Complaint
• Filed August 8, 2016
• District of Columbia District Court
• Smith v. U.S.A., 2016, No. 01610
• Dismissed on standing, citing a brand-new
precedent.
• Appealed Smith v. USA, No. 17-5091
31
The Defendants (then)
• Director Central Intelligence Agency John O. Brennan
• Secretary, U.S. Department Of Defense Ashton Carter
• Secretary, U.S. Department Of State John Kerry
• Secretary, U.S. Department Of Treasury Jacob Lew
• Secretary U.S. Department Of Energy Ernest Moniz
• President Barack Obama
• Secretary U.S. Department Of Commerce Penny
Pritzker
32Case 16-01610
The Defendants (now)
• Director Central Intelligence Agency Mike Pompeo
• Secretary, U.S. Department Of Defense James Mattis
• Secretary, U.S. Department Of State Rex Tillerson
• Secretary, U.S. Department Of Treasury Steven
Mnuchin
• Secretary U.S. Department Of Energy Rick Perry
• President Donald Trump
• Secretary U.S. Department Of Commerce Wilbur Ross
33Case 16-01610
What statutes?
• Violations of the Administrative Procedure
Act, 5 U.S.C. §§ 551 et seq,
• Take Care Clause, U.S. Constitution, art. II, §
3, cl. 5
• 28 U.S. Code § 1361.
34Case 16-01610
Standing - sample Plaintiff injury claims
• Department of Commerce demand of
$6,984.50 for files detailing recent (post year
2010) Israeli front-company importation of
nuclear weapons tech from US
• Non-payment of $624.78 in court costs
• $10.952.78 in costs and fees to pursue and
release unclassified DoD report on the Israeli
nuclear (including hydrogen bomb).
• Informational injury caused by “ambiguity”
undermining sunshine law requests (including
MDR.) 35Case 16-01610
Harm “Fairly Traceable” to scheme to violate AECA/S&G
• Appellee/Defendants’ desire to ignore the AECA which places
conditions on U.S. foreign aid to non-NPT signatory nuclear
weapons states such as Israel;
• Implementation of “nuclear ambiguity” to restrict release of U.S.
government information about Israel’s nuclear weapons
program.
• Enforcement of “nuclear ambiguity” through WPN-136 and other
measures to thwart information releases and informed official
responses to public queries.
• Improper classification under EO 13526 that cover up
wrongdoing. Perpetuation of violations through MDR.
• Spurious use of FOIA exemptions, MDR denials, excessive
fees, and delaying tactics.
Page 36Case 16-01610
What Happened in the Lower Court 16-01610
• Plaintiff filed a request for injunction against
disbursement of US aid to Israel until litigation
resolved 11/1/2016
• Defendants sought dismissal on grounds of
standing – 12/1/2016
• Lower Court dismissed on standing, citing a
1/31/2017 legal precedent – 2/27/17
• Five apparent errors in the seven-page decision
provided grounds for an appeal.
37Case 16-01610
IRmep Aid & Ambiguity16-01610 is now 17-5091
Page 38
So far, the panel of Judges has refused to:
• Issue an injunction against further US aid
until the case is decided.
• Review WPN-136 in camera
• Disallow a lengthy extension requested by
the Department of Justice
Page 39Appeal 17-5091
Appeal Argument #1
• Lower Court misapplied Crew v DOJ
(1/31/2017) “To the extent that plaintiff
alleges informational injury — harm
resulting from his inability to access the
information he seeks — based on
Executive Order 13526, he must seek
redress under FOIA and not the APA.”
• Appellant argues that WPN-136 is an
unlawful legislative rule that nullifies FOIA.
• ….and can’t be reached through FOIA.
Page 40Appeal 17-5091
Appeal Argument #2
• Lower Court asserted “Plaintiff may seek
compensation for his FOIA fees in the
lawsuits he brought pursuant to FOIA.”
• As a Pro Se litigant, the Plaintiff is uniquely
ineligible to receive any fees (attorney fees)
in FOIA lawsuits, only costs (such as court
filing costs). Only members of the bar can
receive fees.
• This a level of lower court error which should
easily trigger a remand.
Page 41Appeal 17-5091
Appeal Argument #3
• Lower Court asserted ““To the extent that
plaintiff alleges informational injury — harm
resulting from his inability to access the
information he seeks — based on Executive
Order 13526, he must seek redress under FOIA
and not the APA,”
• The Plaintiff also included MDR cases in his
complaint. No MDR can be appealed to any court,
only the federal-agency-controlled ISCAP. Impact of
WPN-136 on MDR not reachable.
• Again, a level of lower court error which should
easily trigger a remand. Page 42Appeal 17-5091
Next moves
• Appellee Brief
11/8/2017
• Appellant Reply Brief
11/01/2017
• Final Briefs 11/22/2017
• Decision on remand
whether merits can
finally be addressed.
Page 43Appeal 17-5091
Relief
• “Nuclear ambiguity is the unlawful fulcrum the
Defendants and their predecessors have
employed for decades to illegally hoist the
lion’s share of U.S. taxpayer funded foreign
aid into the coffers of an unlawful recipient.”
• It directly injures Americans, such as the
plaintiff, who attempt to overcome it and
expose the truth.
• It indirectly injures American taxpayers.
• Relief is eliminating the fulcrum.
44
Defendant Tactics/Judicial Deference (from all cases)
• Delay, postpone, request
more time
– Judges grant– When timely filed
– When not timely filed
• Appeal to authority
– Boilerplate affidavits filed by
high CIA officials about the
alleged danger in releasing
classified information are
sacrosanct in the courtroom
Page 45
Defendant Tactics/Judicial Deference (cont.)
• Impersistence of memory
• Judges will not consider
that the CIA has previously
incinerated and deleted
information…
• …even after being ordered
by courts to turn it over in
FOIA cases.
• Every case involving CIA
has a fresh, clean, new
slate, with no priors. Page 46
Defendant Tactics/Judicial Deference (cont.)
• Defendants frequently
make sweeping,
unsubstantiated claims.
• When proven wrong,
there are no
consequences
• Court allows them to
pivot to other
arguments.
Page 47
Defendant Tactics/Judicial Deference (cont.)
• Frequent changes in DOJ
representation
– See “delay, postpone, request
more time.”
• Multiple bites of the apple
– Defendants allowed to make
substantially similar arguments
for dismissal over and again.
– Plaintiffs only have to lose once.
Page 48
Defendant Tactics/Judicial Deference (cont.)
• DOJ attorney “infallibility”
– DOJ attorneys can file
boilerplate briefs
• with the wrong parties
• and incorrect case
numbers.
– Generates no response or
reprimand from the court.
Page 49
Defendant Tactics/Judicial Deference (cont.)
• Indisputably authentic, but
leaked (non-officially
declassified or released) U.S.
government documents
– Often directly refute defendant
arguments
– Cannot be given due
consideration by the court
Page 50
IRmep Lawsuits (Past/Present)
DOD REPORT ON
ISRAELI NUCLEAR
WEAPONS
DEVELOPMENT
INFRASTRUCTURE
14-01611
CIA NUMEC
DIVERSION
FILES
15-00224
US AID TO ISRAEL
AND
“NUCLEAR
AMBIGUITY”
16-01610
CIA
INTELLIGENCE
AID TO ISRAEL
1990-2015
TOPLINE BUDGET
NUMBERS
15-01431
Research/Drafting/
Expert Review
Filed
Briefing / Dispositive
Motions
11/3/2017
Decision Report Released
02/10/2015
Dismissed
3/31/2017
Appeal 4/25/2017
Remand/Dismissal
Decision Page 51
Classified U.S. foreign aid to Israel - 15-01431
• “But the fact is, partly due to American military and
intelligence assistance, which my administration has
provided at unprecedented levels, Israel can defend
itself against any conventional danger -- whether
from Iran directly or from its proxies.” President
Obama – American University 8/5/2015
• $1.884 billion intelligence aid? ($4.999 billion
previous unadjusted high minus $3.115 billion 2015
aid?)
• $13.205 billion? ($4.999 billion in 2015 dollars
inflation adjusted to $16.320 billion minus $3.115
billion)
52
IRmep Lawsuits (New & Pending)
Federal Agency
Capture: US
Department of
Treasury
17-01796
Foreign Agents
Registration Act
Office – US
Department of
Justice
Federal Agency
Capture: US
Department of
Justice
Federal Agency
Capture: US
Department of
State
Research/Drafting/
Expert Review
12/01/2017 est. 2/01/2018 est. 4/1/2018 est.
Filed 9/1/2017
Briefing / Dispositive
Motions
Decision
Appeal
Remand/Dismissal
Decision
Page 53
FOIA Response – DOJ Pardon Attorney – 16 days
Page 54
FOIA response OTFI Treasury Unit – 5 Years
Page 55
Page 56
Questions
and
Answers
Resources (Part 1)
• Israel Aid and Ambiguity Appellant Brief
– http://irmep.org/CFP/S&G/09182017_Appellant_Brief_v36.pdf
• US State Department Spokesperson John Kirby Dodges
Questions about how Israel’s nuclear weapons make US
aid unlawful:
– https://youtu.be/NXvi9QDWyO4
• Sam Husseini/Chris Belcher Washington Stakeout: US
executive branch officials dodging Israel nuke questions
– https://youtu.be/RSuIFDNz5KE
57
Resources (Part 2)
• The Case of James Doyle
– https://www.publicintegrity.org/2014/07/31/15161/nuclear-
weapons-lab-employee-fired-after-publishing-scathing-critique-
arms-race
• Obama speech mentioning intelligence aid to Israel at
American University
– https://obamawhitehouse.archives.gov/the-press-
office/2015/08/05/remarks-president-iran-nuclear-deal
• IRmep public polls on nuclear weapons, foreign aid and
other topics
– http://irmep.org/surveys/
58
Resources (Part 3)
• Nixon Library (NARA) Finding Aid to National
Security Council files
– https://www.nixonlibrary.gov/forresearchers/find/textual/
institutional/finding_aid.pdf
• “Erased” CIA torture report, videos
– http://thehill.com/policy/national-security/280002-cia-
watchdog-accidentally-destroyed-only-copy-of-torture-
report
– http://www.washingtonpost.com/wp-
dyn/content/article/2010/11/09/AR2010110904106.html
• IRmep cases, exhibits and filings:
– http://irmep.org/CFP/ Page 59
60
Copyright 2001, The Yankee GroupAll rights reserved.
Page 61
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100604810593715
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Thank you.